c 


UNIVERSITY  OF  ILLINOIS 
LIBRA 


FJC     THER    REMARKS 


ON  THE 


MEMORIAL  OF  THE  OFFICERS 


6F 


ffinttbartr  CoUe&e 


By  AN  ALUMNUS  OF  THAT  COLLEGE, 


BOSTON: 

PRINTED    BY  WEILS  AND  III1T— COURT-STREET. 
1824. 


c 

HZ. 


FURTHER    REMARKS, 


A  reply  has  been  made  to  my  former  remarks,  and 
I  understand  that  it  is  denied,  that  the  officers  ever 
claimed  an  exclusive  right  to  be  elected  Fellows.  If 
it  was  an  error  in  me  so  to  have  construed  the  me- 
morial, it  is  one,  which  I  have  shared  with  some  of 
the  most  eminent  lawyers  of  the  State.  It  is,  how- 
ever,  of  no  moment,  whether  we  were  mistaken  or 
not,  since  it  is  now  avowed,  that  no  such  claim  is  set 
up.  The  question  is,  then,  very  much  narrowed,  and 
the  Overseers  are  relieved  from  much  anxiety,  which 
they  might  have  felt  in  deciding  an  important  ques- 
tion of  right  It  is  now  admitted,  that  every  man 
(being  an  inhabitant  of  the  Bay)  is  eligible,  and  it  is 
simply  maintained,  that  the  Fellows,  so  elected,  are 
bound  to  reside  at  Cambridge.  It  is  not  precisely 
defined,  what  they  are  to  do,  when  there,  but  it  is 
intimated,  that  they  are  toco-operate  in  the  instruc- 
tion and  government.  The  present  Fellows  then, 
were  lawfully  chosen,  and  as  neither  the  charter  nor 
the  laws  of  the  College,  since  the  charter,  have  pre- 
scribed any  ceremony  for  their  induction,  they  be- 


came,  upon  their  election  by  the  two  boards  and  ac- 
ceptance, lawful  Fellows,  and  so  must  continue  till  re- 
moved. 

As  my  remarks  have  been  censured  for  looseness 
and  obscurity,  and  as  being  a  popular  appeal  to  the 
prejudices  of  the  public,  1  will  endeavour,  in  my 
brief  discussion  of  this  new,  and  much  simpler  ques- 
tion, to  be  more  precise. 

1  shall  first  consider,  whether,  if  the  construction 
of  the  charter  now  contended  for  be  correct,  what 
consequences  would  follow  from  it ;  and  what,  under 
all  the  circumstances  of  the  case,  should  be  the 
course  of  the  Overseers? 

2d.  I  shall  endeavour  to  show,  that  there  is  still 
less  colour  for  the  position  now  assumed,  that  the 
Fellows  are  held  to  reside,  than  there  was  for  the 
claim  of  the  memorialists,  of  the  exclusive  right  of 
being  elected. 

In  the  first  place,  if  it  be  true,  which  it  is  very  far 
from  being,  that  it  was  the  intention  of  the  charter 
that  the  Fellows  should  reside,  what  consequences 
follow  from  their  failing  so  to  do?  It  would,  it  may 
be  said,  be  such  a  neglect  as  would  justify  a  removal 
If  it  was  the  duty  of  the  Overseers  to  remove  them, 
the  fault  lies  upon  them,  and  they  have  at  least  the  sa- 
tisfaction of  knowing,  not  only,  that  by  this  neglect  they 
have  deprived  no  citizen  of  his  vested  rights,  but  that 
their  negligence  has  been  shared  with  more  than  a 
thousand  persons,  who  have  held  the  same  offices 
from    H>72  to  1824 — and  that  these  persons  enjoyed 


the  reputation  of  having  a  fair  proportion  of  the 
talents,  learning  and  wisdom  of  the  republic. — Nor 
is  this  all.  The  Overseers  may  justly  feel  a  delicacy, 
especially  in  such  a  case,  in  charging  all  their  prede- 
cessors with  ignorance  and  wanton  negligence.  They 
may  think,  that  the  charter  being  silent  on  this  head — 
the  facts  very  imperfectly  settled,  they  should  be 
justified  in  deciding  that  the  construction  put  upon 
the  charter  at  so  early  a  day,  and  acted  upon  by  five 
or  six  generations  of  learned  and  able  men,  is  enti- 
tled to  high  respect;  and  even  if  in  their  private 
opinions  there  seemed  to  be  some  colour  for  the  po- 
sition here  assumed,  after  a  century  and  a  half ;  yet 
they  are  bound  to  respect  such  a  constantly  repeated, 
and  so  ancient  a  construction.  Let  us  see  by  whom 
this  construction  has  been  put  upon  the  charter? 

1st.  By  the  resident  Fellows  themselves — the  per- 
sons  interested,  as  it  is  said,  to  resist  it.  In  1672, 
three  non-residents  were  chosen  at  once.  By  the 
charter,  four  members  of  the  corporation  are  ne- 
cessary to  an  election.  It  is  demonstrable  therefore, 
that  all  the  resident  Fellows  and  Tutors  first  put 
this  construction  upon  the  charter,  and  that  too,  in 
twenty-two  years  only  after  its  date,  when  all  the 
facts  were  perfectly  known  to  them. 

2dly.  By  the  Board  of  Overseers,  who  are  obliged 
to  act  positively  in  every  election.  In  1672  Samuel 
Danforth  was  a  member  of  the  Overseers,  and  had 
been  named  one  of  the  first  Fellows.  He,  and  the 
major  part  of  the  Overseers  then  knew,  perfectly 


recollected,  what  was  the  understanding  of  the  fram- 
ers  of  the  charter,  and  what  were  the  facts  (now  so 
obscure)  which  had  occurred  after  the  grant  of  the 
charter.  It  is  also  to  be  observed,  that  the  Gover- 
nor, and  one  branch  of  the  Legislature,  have  (with 
the  exception  of  two  years)  always  been  members  of 
this  Board,  and  thus,  it  may  fairly  be  asserted,  that 
the  construction  which  has  been  put  upon  the  char- 
ter for  152  years,  was  approved  by  the  public  au- 
thorities. 

3d.  The  frame rs  of  the  Constitution  of  1780,  put 
the  same  construction  upon  it.  They  recite  all  the 
charters — they  had  them  of  course  before  them. 
They  knew,  that  Bowdoin,  and  Cooper,  and  La- 
throp,  and  Howard,  were  all  nora-residents,  and  with 
submission  to  the  learned  and  eloquent  reviewer,  they 
confirmed  them  personally  in  their  offices,  though  they 
did  not  name  them.  Where  were  the  resident  offi- 
cers at  that  time  ?  On  the  spot,  at  Cambridge,  where 
the  Convention  was  held.  Why  did  they  not  inter- 
pose their  claims,  or  suggest  this  departure  from  the 
charter?  Forty-four  years  have  since  elapsed  with- 
out a  murmur. 

4th.  The  Legislature  under  the  new  Constitution, 
have,  by  a  long  succession  of  acts,  indirectly  confirm- 
ed the  non-resident  corporation.  The  last  great 
measure  was  the  grant  to  the  won-resident  corpora- 
tion, upon  their  memorial,  of  100,000  dollars,  to  build 
a  Medical  College  in  Boston,  to  provide  for  the  sup- 
port of  indigent  scholars,  and  to  promote  the  other 


great  objects  of  the  College.  This  surely  is  not,  though 
recent,  one  of  the  heavy  marks  of  displeasure,  which 
the  government  has  inflicted  on  the  corporation. 

We  think  therefore,  that  if  there  were  doubts  about 
the  question  of  residence,  the  present  Overseers  may 
fairly  and  honourably,  nay,  we  think,  are  bound,  fairly 
and  honourably  to  consider  the  question  settled.  Mi- 
serable would  be  the  state  of  any  country,  in  which 
questions  so  long  at  rest,  should  be  held  to  be  the 
subject  of  renewed  controversy. 

"  Interest  reipublicae,  ut  sit  finis  litium,"  never 
could  have  had  a  more  suitable  application.  We 
doubt  whether  the  whole  history  of  legal  proceedings 
in  any  country  of  stable  and  fixed  jurisprudence,  can 
produce  a  case  like  the  present. 

But  we  entirely  deny,  that  the  charter,  and  the 
practice  under  it,  give  a  colour  to  the  position  that 
the  residence  of  the  Fellows  is  indispensable. 

1st.  The  charter  is  as  entirely  silent  about  resi- 
dence, as  it  is  about  the  confinement  of  the  choice  to 
resident  officers,  which  is  now  given  up.  One  line, 
nay,  one  word,  would  have  settled  the  question  for- 
ever.    Yet  that  one  word  is  omitted. 

2d.  There  was,  when  the  charter  was  made,  a  by- 
law, requiring  the  resident  Fellows  to  subscribe  cer- 
tain articles,  among  others,  requiring  them  to  teach, 
&c.  all  of  them  implying  residence.  This  ordinance 
is  unrepealed.  It  was  recent  when  the  charter  was 
granted.  There  is  not  a  pretence,  that  any  corporate 
Fellow  was  ever  called  upon,  since  the  charter,  to 


8 

sign  this  engagement.  The  election  and  acceptance 
are  all  that  has  been  required.  Can  there  be  a 
stronger  proof,  that  the  corporate  Fellows  were  con* 
sidered,  ab  initio,  exempt  from  this  law  ? 

3d.  But  I  am  called  upon  to  answer,  why  I  took 
no  notice  of  the  argument  about  the  "  Tutor's 
pasture,"  and  I  am  asked,  if  I  thought  it  too  con- 
temptible for  reply?  I  certainly  have  too  much  re- 
spect for  the  memorialists  to  say,  that  I  considered  it 
so,  but  I  must  say,  when  thus  challenged,  that  I 
thought  it  a  most  unfortunate  argument — and  still 
more  so,  since  the  new  explanation  of  it.  In  the 
memorial,  it  was  alleged,  and  truly,  that  a  small  lot 
of  land  had  been  enjoyed  by  the  Tutors  for  more 
than  one  hundred  years — in  the  new  reply,  it  is  said 
further,  that  the  grant  to  the  resident  Fellows  was 
in  1645,  Jive  years  before  the  charter.  In  the  me- 
morial, it  is  alleged,  that  the  rent  of  this  pasture 
was  within  a  few  years  taken  away  from  the  Tutors? 
and  the  last  landmark  thus  removed.  In  the  new  reply, 
it  is  said,  that  the  possession  has  continued  to  this  day. 
Now  it  is  not  in  my  power  to  invent  a  case  more  un- 
favourable for  the  memorialists.  If,  as  was  asserted 
in  the  memorial,  there  was  at  the  time  of  granting 
the  charter,  a  body  of  men  popularly  called  the  Presi- 
dent and  Fellows,  and  if  the  charter  was  simply  an 
incorporation  of  those  men,  then  all  the  property 
granted  to  them,  or  either  of  them,  "  eo  nomine,"  be- 
came at  once,  ipso  facto,  the  property  of  the  corpo- 
ration. 


It  would  have  been  an  act  of  dishonesty  in  the 
Fellows  to  retain  to  their  own  private  use,  any  part 
of  the  public  property,  and  of  culpable  neglect 
in  the  corporation,  to  sw^erthem  to  do  it.  Yet 
it  is  alleged,  and  truly  so,  that  the  two  Tutors  did  re- 
tain the  grant  of  a  piece  of  land  to  themselves,  and 
they  and  their  successors,  excluding  the  professors, 
have  occupied  and  possessed  it,  and  received  its  rents 
and  profits  nearly,  or,  (as  it  is  asserted)  quite  down 
to  this  day.  I  know  of  no  stronger  proof  than  this, 
that  from  the  date  of  the  charter,  the  resident  Fel- 
lows and  the  Corporation  were  considered  distinct 
bodies,  having  separate  interests.  Besides,  if  this 
insulated  fact  is  cited  as  a  proof,  that  the  resident 
Fellows  once  held  all  the  corporate  estates,  how  can 
they  account  for  the  fact,  that  they  have  lost  all  the 
thirteen  acres  of  College  ground  except  this  half 
acre  ?  When,  by  whom,  and  in  what  manner,  was 
this  disruption  of  the  College  property  effected  ? 
There  is  no  pretence  for  it.  The  College  Fellows, 
always  distinguished  from  the  corporate  Fellows,  re- 
tained land  granted  to  them  before  the  charter  as  their 
peculium,  and  denied  that  it  belonged  to  the  new 
(and  in  some  respects  foreign)  body,  created  by  the 
charter.  It  will  be  now  perceived,  that  this  argu- 
ment was  not  omitted  from  any  apprehension  of  its 
force. 

4th.  But    a  very    novel    argument    is    suggested. 
u  The  College  at  Cambridge  is  declared  to  be  a  cor- 
porations—therefore the  corporation  is  the  College, 
2 


10 

The  College  must  be  at  Cambridge,  and  therefore 
the  Corporation,  which  is  the  College,  must  be  there 
too.  Wherever  the  corporation  resides,  there  is  the 
College,  and  of  course  it  follows,  that  one  seventh 
part  only  of  the  College  is  at  Cambridge,  one  seventh 
in  Roxbury,  and  four  sevenths  in  Boston,  the  other 
seventh,  as  there  is  a  vacancy,  being  at  present  no 
where.  Yet  this  idea  was  so  new  even  to  its  author, 
that  in  the  page  before  only,  he  speaks  of  the  CoU 
lege  having  been  removed  to  Concord.  Now  the  cor- 
poration never  removed  there,  of  course  the  College,  on 
his  principles,  did  not.  To  be  sure,  what  we  com- 
monly call  the  College,  viz.  the  immediate  Go- 
vernment, Graduates,  and  Students,  were  removed, 
but  the  College  never  was,  upon  this  novel  con- 
struction. Yet  he  says  it  was.  There  would  be  one 
singular  inference  from  this  doctrine,  that  if  the  cor- 
poration should  all  reside  at  Cambridge,  they  might 
send  all  the  rest  of  the  institution  to  Worcester,  and 
when  called  to  account  for  this  breach  of  the  char- 
ter, they  might  reply,  "The  corporation  (that  is  the 
College)  are  still  at  Cambridge."  The  words  of  the 
charter  are  therefore  fulfilled. 

But  it  may  be  said,  the  language  in  the  reply  "  of 
the  College  removing  to  Concord,"  was  used  popularly. 
Yet  that  will  not  do,  because  it  is  said,  that  nothing  but 
necessity  could  justify  it,  because  the  charter  provides, 
that  the  College  shall  be  at  Cambridge.  There  would 
have  been  some  colour  for  the  argument,  if  it  had 
been   contended,   that    the  Corporation,  immediate 


11 

Government,  and  Students  altogether,  made  the  Col- 
lege. Yet  even  this  could  not  stand  the  test  of  sound 
examination,  because  the  learned  writer  maintains 
that  the  Overseers  are  a  more  legitimate  branch  of 
the  whole  College  government,  than  the  corporation 
as  at  present  constituted,  and  surely  it  will  not  be 
contended,  that  the  Governor  and  Counsellors,  and 
Senators,  and  Pastors  of  churches,  are  bound  to  re- 
side at  Cambridge — and  jet  they  are  as  much  a  part 
of  the  College,  in  a  legal  sense,  as  the  corporation. 

5th.  But  great  use  is  made   of  the  words  "  main- 
tenance of  the  President  and   Fellows"  in  the  pre- 
amble to  the  charter,  and  in  some  other  subsequent, 
but  very  early  grants  ;  and  it  is  inferred,  that  if  they 
were  to  be  maintained,  they  were  impliedly  to  reside. 
Now  the  fact  is,  that  from  the  very  date  of  the  char- 
ter, all  the  Fellows  were    never   maintained.     The 
words  are  entirely  fulfilled  by  the   maintenance   of 
any  of  the  President  and  Fellows.     There  are  early 
distinctions   made  in  the  College   records,  between 
Fellows  who  received  stipends  and  those  who  did  not. 
After  the  charter,  President  Dunster  was  so  poor,  as 
to  write  to  the  Government,  and  complain,  that  he 
should  starve,  unless   he  could  be   relieved.     Is  it 
possible  to  admit,  without  any  colour  of  proof,  that 
in  that  condition  they  supported  five  Fellows?    The 
words  import  no  more,  than  that   there  were  some 
Fellows   and   a  President  to   be  maintained.    This 
has  been  always  the  case,  and  is  so  at  this  day.     AH 


12 

the  words  of  these  grants  are  therefore  fairly  and 
substantially  fulfilled.  The  President  is  now  wholly 
maintained,  and  the  Treasurer  partially — that  is,  he 
has  a  salary  from  the  College  funds.  No  words 
either  in  the  charter,  or  in  any  of  the  acts,  imply, 
either  that  all  the  corporation  are  to  be  maintained 
by  the  College,  or  that  they  are  always  to  be  main- 
tained, and  surely  it  is  not  a  cause  of  censure,  that 
many  of  the  Fellows  now  demand  nothing  from  the 
College  funds.  The  truth  is,  that  those  grants  for 
the  support  of  Fellows,  merely  referred  to  the  ex- 
isting state  of  things,  and  provided  support  for  desti- 
tute or  teaching  Fellows.  They  have  no  bearing  what- 
ever on  the  general  question,  nor  any  relation  to  the 
'present  state  of  the  College,  when  the  funds  are  suffi- 
cient to  support  the  Teachers,  who  were  formerly  Fel- 
lows, (it  is  admitted,)  but  not  always  members  of  the 
corporation. 

As  there  were,  when  these  grants  were  made,  dis- 
tinct bodies,  to  wit :  President  and  resident  Fellows, 
who  instructed,  and  a  President  and  Fellows  appoint- 
ed by  the  charter  to  govern  and  manage  the  property 
and  concerns,  language  of  this  sort  ought  to  be  ap- 
plied "  reddendo  singula  singulis."  When  maintenance 
was  spoken  of,  reference  was  sometimes  had  to  the  ac- 
tual teachers,  yet  monies  given  by  deed,  or  devise,  a 
grant  to  the  maintenance  of  the  President  and  Fellows 
after  the  incorporation,  must  generally  be  intended  to 
be  to  the  maintenance  of  them  in  their  corporate  capa- 
city* to  enable  them  to  uphold   the  edifices,  provide 


13 

the  instruction,  and  meet  all  the  other  exigencies  of 
the  institution,  unless  the  words  necessarily  purport 
otherwise. 

Lastly.  There  is  in  the  reply  to  my  remarks,  a 
great  display  of  extracts  from  ancient  records,  which 
will  be  very  likely  to  make  an  impression  on  those 
who  do  not  give  themselves  the  trouble  of  thinking, 
but  unless  my  perceptions  are  as  obscure  and  loose 
as  they  are  represented,  these  extracts  go  farther  to 
settle  the  question,  to  confirm  the  construction  which 
six  generations  of  wise  and  learned  men  have  put 
upon  the  charter,  than  any  thing  which  could  have 
been  urged.  The  public  are  therefore  much  indebt- 
ed to  the  indefatigable  industry  of  the  author  of  the 
reply  for  his  collection  of  facts. 

The  first  document  which  I  shall  cite  from  the  re- 
searches of  the  author  of  the  reply,  is  numbered  by 
him  III.  and  is  to  be  found  in  page  63  of  his  very 
elaborate  treatise.  The  General  Court,  in  August 
1653,  appointed  a  committee  to  make  a  very  full  in- 
vestigation as  to  the  affairs  of  the  College. 

The  fifth  article  of  their  commission  was  in  the 
words  following : 

"  5.  To  consider  what  number  of  Fellows  may  be 
necessary  for  carrying  on  the  work  of  the  College,  and 
what  yearly  allowance  they  shall  have,  and  how  to  be 
paid." 

The  parts  italicised  are  those,  which  the  learned 
author  of  the  reply  to  my  remarks,  has  thus  mark- 
ed, and  the  object  would  seem  to  be,  to  prove,  that  the 
corporate  Fellows  were  to  work,  and  be  maintained* 


14 

This  clause  seems  to  my  mind  to  settle  the  whole 
question  the  other  way,  and  to  prove,  that  the  con- 
struction uniformly  put  upon  the  charter  is  correct ;  to 
wit,  that  the  corporate  Fellows,  and  the  working  Fel- 
lows, were  as  early  as  1653,  three  years  after  the 
charter,  distinct  bodies.  The  corporation  was  then 
in  high  favour.  Four  years  afterwards  the  General 
Court  enlarged  its  powers  most  materially,  by  the 
appendix  to  the  charter.  Now  it  is  incredible,  that 
they  intended  to  refer  to  a  committee  the  question, 
what  number  of  corporate  Fellows  there  should  be, 
because  the  charter  held  fixed  them  at  Jive. 

The  question  submitted  to  the  committee  was, 
what  number  of  "  Fellows  was  necessary  to  carry  on 
the  work  of  the  College,"  that  is,  what  number  of 
Tutors  and  resident  Fellows  was  necessary  for  the 
number  of  students  taught.  This  precisely  corres- 
ponds with  the  view  which  I  have  presented  in  my 
remarks,  of  the  early  state  of  the  College — with 
its  early  history — with  the  probable  and  natural 
course  of  things.  It  would  be  to  suppose  our  ances- 
tors spendthrifts,  and  madmen,  to  contend,  that  they 
supported  Jive  Fellows  to  teach  twenty-nine,  and 
sometimes,  sixteen  students. 

This  case  therefore,  establishes  in  my  mind,  as  the 
lruth,3.nd  which  alone  can  reconcile  the  apparently  con- 
tradict ory  facts,  "  that  the  corporate  Fellows,  as  such, 
were  ab  initio  a  distinct  body,"  of  which  the  teaching 
Fellows  might  or  might  not  form  a  part.  We  have 
no  positive  proof,  that,  from  the  very  commence- 


15 

merit,  they  did  form  a  part  of  the  corporation, 
though  it  is  highly  probable,  that  some  of  them  did  so. 
In  later  times,  we  know,  they  were  generally  admitted 
to  form  a  certain  proportion  of  the  corporation,  but 
never  on  the  ground  of  right.  It  is  clear,  that  the 
General  Court,  in  this  fifth  article  of  the  commission 
referred  to  teaching  fellows,  and  did  not  intend  to  au- 
thorize that  committee  to  inquire,  whether  the  corpo- 
rate Fellows,  whose  number  was  fixed,  should  be 
reduced.  They  were  confined,  to  the  question, 
how  many  resident  instructors  were  necessary. 
The  resident  Fellows,  who  were  instructers,  were 
maintained,  and  there  were  but  three  till  1720, 
seventy  years  after  the  charter.  If  this  case 
proves,  as  it  appears  to  my  mind  to  do,  that 
from  the  date  of  the  charter  the  fellows  of  the  corpo- 
ration, and  the  working  Fellows,  were  always  kept 
distinct,  in  the  apprehension  of  the  General  Court, 
and  of  the  public,  it  furnishes,  at  once,  a  simple  explana- 
tion of  the  language  of  all  the  legislative  grants  and 
private  donations,  which  would  seem  in  some  cases 
to  be  absurd,  without  it. 

When  therefore  the  Legislature  granted  a  sum  to 
the  support  of  the  President  and  Fellows  "  to  be  pro- 
portioned  as  the  Overseers  shall  determine,"  according 
to  our  view,  they  intended  such  Fellows  only  as  car- 
ried  on  the  work  of  the  College,  or  were  Teachers,  and 
whose  number  they  were  desirous  should  be  as  small 
as  was  necessary. 

The  various  private  donations  for  the  support  of 


16 

Fellows,  cited  by  the  learned  author,  seem  to  me  to 
be  in  exact  accordance  with  this  simple,  natural,  and  to 
my  mind,  inevitable  construction. 

1st.  John  Glover  gave  a  donation  for  and  towards 
the  maintenance  of  a  Fellow  there,  Jive  pounds  forever. 
Will  any  person  believe,  that  this  was  a  grant  to  the 
President  and  Fellows  as  a  corporate  body  ?  Was  it 
not  (being  made  after  the  charter)  as  distinct  a  grant 
for  the  maintenance  of  a  College  Fellow,  as  any  words 
could  make  it  ?  It  would  have  no  bearing  on  the 
present  question  to  inquire,  why  the  corporation  have 
not  elected  Fellows,  to  whom  this  grant  would  go. 
Very  satisfactory  reasons  may  be  assigned  for  it  if  it 
was  necessary — but  it  is  clear,  that  such  a  grant  had 
no  reference  to  the  corporate  Fellows. 

2d.  Robert  Keyne  also  in  1653,  left  320  pounds, 
"  for  some  addition  yearly  to  the  poorer  sort  of  Fel- 
lows." I  hope  this  could  not  be  construed  to  be 
the  corporation.  It  evidently  meant  fellows,  neither 
instructers  nor  members  of  the  corporation,  but  simply 
resident  candidates  for  the  ministry,  and  other  pro- 
fessions, who  resided  there,  and  were  in  indigent  cir- 
cumstances; some  of  whom  w  ere  in  early  tim  s  elect- 
ed Fellows — certainly  not  corporate  Fellows. 

3d.  The  Pennoyer  fund  was  given,  with  a  provi- 
sion, that  two  Fellows,  and  two  scholarsybrever,  should 
be  educated,  brought  up,  and  maintained  in  the  College 
at  Cambridge.  What !  and  is  this  too  cited  against 
us  ?  Did  this  intend,  that  the  existing  Fellows  and 
Governors   of   the   College    should   be    educated  and 


17 

brought  up  there  ?  It  only  shews,  how  easy  it  s  U 
arrange  a  large  mass  of  authorities,  which  have  no 
sort  of  application  to  the  great  question.  Touching 
this  Pennoyer  fund,  for  example,  it  was  suffered  to 
accumulate,  till  the  corporation  lately  thought  it  so 
respectable,  as  to  allow  one  hundred  dollars  a  year 
to  a  meritorious  scholar  not  in  affluent  circumstances, 
and  one  hundred  dollars  a  year  to  a  Pennoyer  Fel- 
low; the  only  one  in  the  College  at  present,  but  sure- 
ly it  would  be  going  very  far,  to  say  that  the  Pennoy- 
er fund  was  granted  for  the  maintenance  of  the  Presi- 
dent and  Fellows  only. 

I  perceive  nothing  further  in  relation  to  the  pre- 
sent question,  that  it  is  necessary  to  meet.  There 
are  many  parts  of  the  elaborate  reply  which  re- 
quire  no  answer.  There  are  others,  which  could 
not  be  answered  without  giving  mutual  pain.  I 
could  point  out  many  mistakes  as  to  the  represen- 
tation of  my  own  statements.  But  I  am  willing  to 
submit  to  all  the  ill  effects  of  them,  and  am  entirely 
ready  to  rest  the  argument  as  it  now  stands. 

I  think  it  may  be  gratifying  to  those,  who  saw  the 
statement  of  the  abortive  attempt  of  1722,  to  see 
in  what  light  so  excellent  a  President  as  Leverett, 
and  so  respectable  a  man  as  Gov.  Shute,  viewed 
that  question. 
3 


18 


LETTER  FROM  PRESIDENT  LEVERETT  TO  DR.  COLMAN. 

Cambridge,  Nov.  26,  1722. 
Rev.  and  Dear  Sir, 

This  morning  I  am  informed,  that  the  House  of 
Representatives  have  brought  forward  their  bill  for 
alterations  in  the  corporation,  which  the  Governor 
signed  with  the  proviso  of  jour,  Mr.  Wadsworth's, 
and  Mr.  Appleton's  continuance  as  members  of  the 
corporation,  and  suppose  the  intent  is,  to  refuse  the 
Governor's  allowance,  if  he  don't  come  into  their 
scheme  without  reserve.  I  understand  also  that  Col. 
Dudley  has  informed  the  House  that  Mr.  Wadsworth 
and  you  will  resign  your  places,  and  then  the  way 
will  be  clear.  But  I  hope  better  things  of  you.  How- 
ever, I  doubt  not,  salvation  will  come  to  this  poor 
society,  from  Him,  to  whom  salvation  belongs. 

His  Excellency  has  told  me,  that  he  is  so  well  satis- 
fied, that  the  project  will  be  fatal  to  the  College,  that 
he  never  will  come  into  it,  let  what  will  come.  I  pray 
God  confirm  his  resolutions,  and  prevent  this  ruin 
coming  to  the  College  under  his  hands.  I  ask  your 
prayers  for  the  Divine  presence  with,  and  direction 
to  me  in  the  affair,  that  will  be  but  so  much  the 
more  difficult  for  me,  if  you  withdraw. 
I  am,  &c. 

JOHN  LEVERETT. 

Nothing  need  be  said  of  Leverett's  presidency — his 
efficiency  and  usefulness.  He  had  been  fifteen 
years  president  when  he  wrote  this  letter.     He  had 


19 

been  surrounded  by  resident  and  wow-resident  Fellows, 
and  he  considered  the  retirement  of  the  non-resi- 
dent Fellows  fraught  with  ruin  to  the  College.  In 
my  remarks,  I  said,  that  if  the  claim  set  up  by  the 
memorialists  should  be  admitted,  there  would  be 
danger  of  collisions.  The  tutors  might  justly  pre- 
tend to  a  prior  right  of  election.  This  would  produce 
divisions  and  discord.  The  following  extract  will 
shew,  that  these  fears  were  not  without  foundation, 

EXTRACT  OF  A  LETTER  FROM    WADSWORTH  TO  COLMAN. 

Jan.  14,  1728-9. 
"As  for  Professors  with  us,  Fm  heartily  desirous, 
that  all  proper  regards  should  be  paid  to  them,  but 
being  of  late  date  with  us,  I  think  they  have  no 
claim  to  work  or  wages,  but  what  their  founders', 
rules,  and  consequent  acts  of  the  corporation  and 
overseers  give  them.  If  they  do  the  work  thus  as- 
signed them,  and  receive  the  benefits  annexed  to 
them,  I  think  they  have  no  reason  to  be  uneasy,  or 
to  make  others    so." 

Signed  by  President  WADSWORTH. 

Some  curiosity  was  excited  by  the  fact,  that  three 
young  men  just  out  of  College,  (and  certainly  not  tu- 
tors, because  Mather  and  Danforth  were  the  tutors, 
and  for  seventy  years  afterwards  there  were  but 
three  officers  of  all  descriptions,)  were  nominated  Fel- 
lows in  the  charter.  And  there  was  no  reasonable 
explanation  why  they  were  described  as  "  all  inhabi- 


20 

tants  of  the  Bay"  a  most  fatal  clause  for  these  mo- 
dern pretensions.  I  was  not  satisfied  with  the  ex- 
planation, that  they  were  called  inhabitants  of  the 
Bay,  to  signify  "  that  they  were  not  looked  for  from 
Europe."  It  seemed  to  me,  to  be  too  far  fetched. 
An  intelligent  friend  has  given  a  rational  solution  of 
these  facts.  Mitchell  had  been  preaching  at 
Hartford,  on  probation,  in  the  autumn  of  1749,  be- 
fore the  charter.  Ill  health  obliged  him  to  return 
to  Cambridge.  It  was  expected,  that  he  would  be 
settled  there,  as  he  soon  afterwards  was.  He  was 
therefore  a  convenient  Fellow  in  the  infancy  of  the 
College,  when  Dunster  was  praying  for  thirty  pounds 
to  finish,  and  secure  from  rain  the  only  college  edi- 
fice. There  could  be  no  thought  of  calling  the  emi- 
nent men  of  Boston  to  superintend  affairs  of  such  small 
amount,  especially  since  as  overseers,  they  had  great 
authority.  As  to  the  two  other  Fellows,  who  were 
not  officers,  it  seems  that  the  colonies  of  Plymouth 
and  New  Haven  had  been  called  upon,  and  had  con- 
tributed to  the  support  of  the  only  New-England 
College,  and  therefore  when  the  charter  was  granted 
the  General  Court,  to  conciliate  these  colonies,  pro- 
bably inserted,  as  Fellows,  Comfort  Star,  a  very  young 
man  of  the  Plymouth  Colony,whose  father  was  of  some 
consequence  there,  and  Samuel  Eaton,  son  of  a  distin- 
guished citizen  of  New  Haven  Colony.  It  would  be 
difficult  to  devise  how  on  any  other  principle,  it  should 
so  happen  that  the  choice  should  fall  upon  them. 
Still,  the   General  Court   of  Massachusetts,  fearful 


21 

that  it  might  be  drawn  into  a  precedent,  made  the 
limitation  of  "  Inhabitants  of  the  Bay,"  which  at  that 
time,  as  resident  graduates,  they  actually  were. 
These  circumstances  are  only  alluded  to,  as  furnishing 
a  more  rational  solution  of  the  unexplained  facts  in 
the  early,  and  too  obscure  history  of  the  College. 

Some  excitement  seems  to  have  been  felt  at  my 
remarks  upon  the  effects  of  vesting  so  much  power 
in  any  one  public  body — viz.  Self  election — and  the 
fixing  their  own  duties  and  emoluments.  These  re- 
marks were  simply  the  expression  of  principles, 
recognized  in  this  country  of  laws,  as  to  all  men,  and 
all  bodies  of  men,  from  the  President  to  the  lowest 
corporations  in  the  Republic.  If  they  are  unsound,  we 
have  all  been  in  an  error;  but  I  will  simply  remark, 
that  the  most  delicate,  embarrassing  and  painful  ques- 
tions, which  the  Corporation  have  ever  been  called 
upon  to  discuss,  during  the  last  thirteen  years,  have 
arisen  from  the  claims  of  salaries,  grants,  indulgences 
and  occasional  exemptions.  They  must  be  so  in  their 
very  nature,  and  every  man  will  feel  them  to  be  so. 
I  do  not  mean  to  intimate  that  there  has  been  any 
thing  more  demanded,  than  other  officers  of  all  des- 
criptions in  civil  society  ask  and  expect.  Still  they 
are  always  difficult  and  embarrassing.  We  are  told, 
(it  was  new  to  me,)  that  the  corporation  contem- 
plate reducing  the  salaries  of  the  present  officers ; 
but  it  would  seem  not  to  furnish  any  peculiarly  strong 
reasons  for  the  demanded  change.  I  owe  it,  however, 
to  truth  and  principle,  to  say,  that  I  entirely  agree  in  the 


22 

opinion  expressed  by  the  author  of  the  reply,  that 
every  possible  encouragement  should  be  given  to  in- 
duce men  of  the  finest  talents  to  accept  and  hold  these 
offioes — that  I  had  no  idea  of  throwing  out  any  ex- 
pressions which  could  give  pain  when  1  spoke  of 
their  pleasant  and  honourable  duties.  I  meant  simply 
to  intimate  what  1  have  always  thought,  that  there 
were  no  professional  men  in  the  State,  whose  situation 
is  in  many  respects  more  eligible.  There  are  un- 
doubtedly occasionally,  very  painful  scenes,  which  the 
officers  are  called  to  encounter,  but  if  compared  with 
the  laborious  and  often  unsuccessful  struggles  of  ma- 
ny professional  men,  I  should  still  call  their  general 
condition  enviable. 

I  think  it  may  fairly  be  inferred,  that  this  is  the 
general  opinion,  from  the  readiness  with  which 
gentlemen  quit  the  other  professions  to  accept  these 
offices,  and  from  the  abundant  leisure  which  they 
appear  to  afford  for  other  pursuits. 


NOTES. 


NOTE  (A.) 

THE     CASE     OF     SAMUEL     DANFORTH,     ONE    OF    THE    FIRST    CORPORATE 

FELLOWS. 

It  is  perfectly  natural,  that  the  advocate  should  make  every 
effort  to  explain  away  the  facts  in  this  case,  because  although  of 
very  little  comparative  importance  to  the  defenders  of  the  char- 
ter, and  of  the  long  continued  usage  under  it,  it  would  be  fatal  to 
the  pretensions  of  the  memorialists,  if  Danforth  was  a  non-resident^ 
when  he  was  named  in  the  charter,  and  continued  to  be  a  Fellow 
till  his  death  in  1674.  My  conviction,  that  this  was  true,  is  in 
no  degree  affected  by  the  reply.  1  cannot  admit,  that  Mr.  Dan- 
forth, having  been  a  tutor  and  resident  Fellow  before  the  char- 
ter, throws  the  burden  of  proof  on  the  present  corporation. — 
I  deny,  that  there  is  the  slightest  evidence,  that  Danforth  was  a 
resident  Fellow  on  the  31st  of  May,  1650,  when  it  is  proved, 
that  he  had  been  dismissed  from  the  church,  at  Cambridge,  and 
admitted  a  member  of  the  Roxbury  church,  nineteen  days  be- 
fore. He  was  not  competent  to  administer  the  ordinances  at 
Roxbury  before  ordination,  which  did  not  take  place  till  Sep- 
tember following.  There  could  be  no  motive  for  his  requesting 
a  dismissal  from  Cambridge  and  joining  the  Roxbury  church, 
excepting  a  change  of  domicil.  If  he  was  preaching  as  a  can- 
didate merely,  it  would  have  been,  to  say  the  least,  very  indeli- 
cate to  presume,  that  he  should  be  elected  Pastor,  and  to  take 
so  presumptuous  a  step,  as  to  change  his  church  relations,  which 
he  might  be  compelled,  if  not  chosen,  to  rescind.  It  seems  to 
me,  therefore,  that  Mr.  Danforth  had  received  and  accepted  a 


24 

call,  had  changed  his  domicil,  and  was  in  truth  a  resident  inhab- 
itant of  Roxbury  at  the  time  he  was  appointed  a  corporate  fel- 
low by  the  charter.  We  do  not  think  that  this  presumption  is 
even  weakened  by  the  two  quotations  of  the  indefatigable 
author  of  the  reply.  Dr.  Hoar's  expression  in  his  letter 
to  his  nephew,  intimating,  that  Mr.  Danforth  was  "formerly 
of  the  Society"  of  the  college  at  Cambridge,  seems  to  me  to  have 
no  weight.  No  person  would  now  call  Mr.  Prescott  or  Dr.  Por- 
ter "  of  the  Society  at  Cambridge,"  and  it  is,  indeed,  the  very 
point  of  our  argument,  that  the  Corporation  never  were  considered 
or  called,  or  in  fact  were  "  members  of  that  society"  since  they 
left  the  College  The  great  fault,  which  we  find  not  only  with 
the  memorial,  but  with  the  elaborate  defence  of  it,  is,  that  in 
them  both,  there  is  throughout  a  petitio  principii — an  assump- 
tion of  facts  and  principles,  which  are  denied,  and  which  are  not 
supported  even  by  colourable  evidence. 

Nor  am  I  more  convinced  by  the  expression  of  Johnson  in 
his  "  Wonder  Working  Providence,"  in  which  he  says  that  Dan- 
forth "  is  now  called  to  the  office  of  a  teaching  elder  in  the  Church 
of  Christ  at  Roxbury,  who  was  one  of  the  Fellows  of  the  College." 
Johnson's  book  was  published  a  year  or  two  only  after  the  charter. 
All  parties  are  agreed  that  as  well  before  as  for  years  after  the 
charter,  the  Tutors  were  called  Fellows — and  that  term  was  ne- 
ver given  in  common  parlance  to  the  Corporate  Fellows,  except 
in  the  academic  records,  and  in  law  proceedings.  It  is  not, 
therefore,  to  be  inferred,  that  Johnson  meant  to  say,  that  Dan- 
forth was  not  "  a  member  of  the  New  Corporation."  Even  at 
this  day,  no  man  would  use  the  term  "  Fellow"  as  applied  to 
the  members  of  the  Corporation,  if  there  were  resident  Fellows,  or 
if  the  Tutors  had  that  title.  But  these  insulated  facts  cannot  ex- 
plain, or  controul  the  strong  language  cited  by  me,  in  my  first 
remarks.  In  the  charter  of  1672  Mr.  Danforth  is  thus  described : 
"  Samuel  Danforth,  Fellow  of  the  said  College,"  and  Uriah  Oakes 
in  the  same  charter  is  described  as  "  Pastor  of  the  Church  of 
Cambridge." — Now  we  can  see  no  good  reason,  why  Mr.  Dan- 
forth,   if  not    a   Fellow,   if  he  had  only  been  a  Fellow  for  four 


25 

months  22  years  before,  should  not  have  been  styled  "  Pastor  ot' 
the  Church  in  Roxbury,"  which  he  then  was.  But  it  may  be 
said,  that  the  title  of  Fellow  was  the  more  honourable  one,  and 
was  therefore  bestowed  upon  him.  Yet  I  ask,  whether  it 
would  not  have  been  more  natural  to  style  him  u  late  Fellow," 
or  "  formerly  Fellow,"  or  in  the  quaint  language  of  the  times, 
"some  time  Fellow." 

I  now  advert  to  the  alleged  entry  in  the  College  Records  in 
1674  : — "  This  day  died  Samuel  Danforth,  Senior  Fellow  of  the 
College."  It  is  said,  that  this  title  might  have  been  bestowed 
because  he  was  22  years  before,  for  four  months,  a  Fellow — 
but  in  truth  he  was  never  senior  Fellow  of  the  College,  unless 
from  his  being  such  at  his  death,  for  Samuel  Mather  was  tm»  se- 
nior Fellow  named  in  the  charter  It  is  pretended  that  this  title 
was  given  him,  because  he  was  the  first  named  Fellow  in  the 
charter  of  1672 — but  it  is  indisputable,  that  that  charter  was 
never  accepted.  The  title  is  given  to  him  in  that  charter,  as  his 
subsisting  legal  addition. 

Again,  if  Danforth  was  not  a  member  of  the  Corporation  in 
1672,  it  is  impossible  to  account  for  his  not  being  elected  in  that 
year,  when  three  non-residents  were  introduced.  He  had  more 
experience,  and  as  great  reputation,  and  was  named  as  the  first 
Fellow  in  the  abortive  charter  of  1«j72.  If  he  was  not  at  that 
time  a  member  of  the  Corporation,  it  is  unaccountable  that  he 
should  have  been  omitted  in  that  election.  I,  therefore,  con- 
sider it  as  well  established,  that  Danforth  was  a  Fellow,  when 
the  Corporation  proceeded  to  elect,  in  1 672,  three  non-resident 
members  at  once.  But  I  conclude  by  asking  why  we  should 
pervert  the  natural  and  necessary  meaning  of  phrases  in  such  a 
case  as  this  ?  Why  should  we,  in  order  to  support  such  a  phan- 
tom, which  has  never  been  raised  since  1722 — adopt  such  an 
unnatural  interpretation,  and  construe  terms,  which  imply  the 
present  time,  to  have  a  reference  to  periods  long  pastl  The  lan- 
guage in  the  charter  of  1672  necessarily  imports,  that  Dan- 
forth was  then  a  Fellow — the  expressions  in  the  College  Re~ 
cords  present  the  same  idea.    Was  it  ever  known,  that  the  Col- 

4 


26 


lege  Records  took  notice  of  the  decease  of  a  Fellow,  who  was 
not  in  office?  But  it  is  usual  and  necessary  to  enter  the  death 
of  Fellows  dying  in  office.  This  record  is  proper,  to  show  a  recent 
vacancy,  and  is  sent  to  the  Overseers  to  enable  them  to  recom- 
mend a  new  election.  On  the  whole,  I  feel  convinced,  that 
those  who  seek  the  truth — those,  who  by  their  offices,  are  com- 
pelled to  investigate  with  some  labour,  will  be  convinced,  that 
Danforth  was  not  resident  when  he  was  named  in  the  charter, 
and  that  he  continued  a  member  of  the  Corporation  till  his 
death.  That,  before  his  death,  three  non  resident  Fellows  were 
elected,  and  a  greater  or  less  number  of  non-residents  have, 
from  that  period  constantly  been  members  of  the  Corporation,, 
are  facts,  which  certainly  strengthen  this  very  strong  presump- 
tion. It  will  be  readily  perceived  that  these  remarks  are  ad- 
dressed only  to  those,  who  are  bound  by  their  duty,  or  induced 
by  a  love  of  truth,  and  of  regard  to  the  College,  to  examine 
carefully  the  grounds  of  argument  on  both  sides. 


NOTE  (B.) 

The  memorialists  placed  their  claim  on  certain  assumptions, 
which  cannot  be  supported.  They  alleged  that  the  charter, 
in  fact,  incorporated  only  resident  Officers  and  Instructors — and 
the  late  very  elaborate  and  specious  reply  does  not  materially  de- 
part from  this  ground.  Though  it  disclaims  the  pretence  of 
right,  yet  it  seems  to  cling  to  the  same  doctrine,  that  all  the 
early  Fellows  under  the  charter  were  teachers,  and  were  maintain- 
ed. There  never  was  a  proposition  less  supported  than  this,  by 
their  own  documents.  But  I  shall  adduce  one  proof,  which 
to  my  mind,  seems  to  set  this  new  pretension  as  completely  at 
rest,  as  the  claxm  of  exclusive  eligibility,  which  is  disavowed. 

There  exists  on  the  Corporation  Records,  an  order  or  ordi- 
nance, bearing  the  date   of  1666.  six  years  before    the  alleged 


27 

first  choice  of  non-resident  Fellows,  which  provides,  that  the 
Fellows  who  receive  stipends,  and  do  the  work  of  the  College, 
shall  reside  within  the  College  walls. 

This  case  proves,  that  nine  years  after  the  charter  of  1650 
went  into  operation,  (which  was  not  the  case  till  1657,)  there 
were  certain  Fellows,  who  were  maintained  and  who  did  the 
work  of  the  College,  and  others  who  did  not,  and  who  were  not 
maintained.  The  defender  of  the  memorial  is  at  liberty  to 
construe  this  ordinance  as  will  best  suit  his  purpose.  Either 
the  word  "  Fellows"  here  intends  "  College  Fellows,"  Tutors, 
and  resident  Fellows,  not  Tutors — or  it  intends  the  Corporation. 
In  either  case  it  proves  that  there  were  Fellows  who  received 
no  stipends,  and  who  did  no  work — and  others  who  were  main- 
tained,and  who  governed  and  taught.  My  own  opinion  is,  that 
it  referred  solely  to  resident  Fellows,  some  of  whom  were  paid, 
and  others  merely  suffered  to  remain  there,  to  complete  their 
education,  and  that  the  corporate  Fellows  who  enacted  this  ordi- 
nance, were  a  distinct  body ;  but  if  it  be  referred  to  the  fellows 
of  the  Corporation,  it  proves  that  some  of  them,  from  the  begin- 
ning, were  neither  maintained,  nor  employed  in  the  work  of  fhe 
College. 

I  have  no  doubt,  that  if  access  could  have  been  had  to  the 
College  Records,  I  could  have  placed  this  question  in  a  still 
stronger  light,  but  I  have  purposely  abstained  from  requesting 
this  favour,  lest  I  should  draw  down  upon  the  present  highly  re- 
spected members  of  that  body,  a  still  greater  share  of  not 
very  indirect  censure. — I  now  declare,  that  no  member  of  the 
Corporation  had  any  knowledge  of  my  intention  to  publish  the 
remarks  on  the  memorial  of  the  Officers,  till  they  appeared  in 
print — that  they  were  written  and  published  solely  from  a  per- 
sonal conviction  of  the  unsoundness  of  the  doctrines  advanced 
in  the  memorial,  and  of  their  tendency  to  injure  the  interests  of 
an  Institution,  which  has  been  the  constant  object  of  my  solici- 
tude through  life  ;  connected,  as  I  have  ever  deemed  it,  with  the 
best  interests  of  our  republic.  I  have  been  surprised,  that  such 
an  entire  conviction  of  the  illegality  of  the  past  elections,  had  not 


28 

induced  the  few  who  felt  it,  to  resign  appointments,  which 
they  must  have  perceived  to  be  void — thus  giving  to  the 
new  Corporation,  which  they  prayed  might  be  appointed, 
the  opportunity  of  electing  new  officers. It  is  nearly  de- 
monstrable, that  if  other  men  had  been  elected  152  years 
since,  and  an  organization  entirely  different  had  existed,  no 
one  of  the  present  officers  would  probably  have  been  cal- 
led to  perform  the  duties  which  now  devolve  on  them.  It  can 
scarcely  be  believed,  that  any  other  set  of  men  would  have  had 
precisely  the  same  preferences^  unless  it  should  be  contended,  that 
our  community  cannot  furnish  other  gentlemen  as  well  quali- 
fied. 

I  have  neither  the  leisure  nor  the  learning  requisite  to  discuss 
the  intricate  questions  of  ancient  and  modern  law,  with  which 
the  author  of  the  reply  has  incumbered  the  question  at  is- 
sue. Having  withdrawn  myself,  (for  nearly  one  quarter  of  a 
century,)  from  the  study  of  the  science  of  law,  to  which,  in  my 
youth,  I  never  devoted  more  than  seventeen  years  of  intense  ap- 
plication, I  should  deem  it  very  presumptuous  to  enter  into  the 
examination  of  such  nice  and  difficult  questions,  without  much 
previous  preparation.  I  am,  however,  consoled  by  the  reflec- 
tion, that  this  exhibition  of  legal  erudition  has  very  little  bear 
ing  on  the  present  question,  (narrowed  as  it  now  is  by  the  con- 
cession of  the  advocate  of  the  memorialists,)  and  if  it  had*  there 
are  many  eminent  Jurists,  in  both  the  College  Boards,  who 
would  do  honour  to  any  country,  and  who  are  abundantly  able 
to  supply  my  deficiences.  They  are  men  who  have  acquired 
their  knowledge  by  patient  and  laborious  research,  and  not  by 
inspiration. 


NOTE  (C.) 


It  would  seem,  that  the  committee  of  the  overseers,  and  that 
body  itself,  are  placed  in  rather  an  embarrassing  situation  by 


29 

the  new  and  unexpected  explanation  of  the  purport  of*  the  me- 
morial. The  author  of  the  reply  assures  us,  "  that  he  alone  is 
responsible  for  his  observations,  and  that  whenever  he  speaks  of 
and  seemingly  for  his  colleagues,  he  speaks  only  from  presump- 
tion." We  are  pleased  to  hear  it.  Do  his  colleagues  assent  to 
this  disavowal  of  the  claim  of  right  ?  Did  they  understand  the 
memorial  differently  from  what  it  has  been  universally  under- 
stood by  the  public?  Although  we  readily  admit,  that  the  au- 
thor of  it,  in  the  heat  of  argument,  mierht  have  overlooked  the 
strong  expressions  claiming  tor  the  officers  the  exclusive  right 
of  being  elected,  (and  we  are  bound  so  to  admit  it  on  his  de- 
claration) yet  can  we  extend  the  same  belief  to  the  officers  who 
joined  in  it,  in  whom  were  united  so  much  legal,  critical,  and 
logical  skill?  We  are  bound  to  believe,  that  they  construed  the 
memorial,  as  eminent  lawyers  have  understood  it,  and  they  may 
therefore  still  adhere  to  the  claim  of  right.  It  would  be  impos- 
sible for  us  to  admit,  that  they  who  considered  it  coolly,  could 
have  overlooked  the  strong  expressions,  and  the  general  tenor 
of  the  memorial,  and  still  less  that  they  would  subscribe  a  pa- 
per, that  purported  to  advance  a  claim,  which,  in  truth,  it  was 
not  intended  to  maintain.  It  is  not  from  several  repeated,  and 
clear  phrases  only,  but  from  the  general  scope  of  the  memorial, 
that  the  public  were  led  into  the  error  of  supposing,  that  the 
officers  claimed  to  be  alone  eligible.  The  analogy  suggested 
between  the  Fellows  in  the  British  Colleges,  and  those  which 
our  charter  intended  to  incorporate,  and  which  was  the  basis  of 
the  memorial,  implies  this  claim  ;  because  the  Fellows  are  in 
those  Colleges  always  a  part  of  the  Corporation.  The  several 
expressions  of  the  memorial  quoted  in  the  fifth  page  of  my  Re- 
marks also  confirm  this  construction.  The  argument  founded 
on  the  possession  of  the  Tutor's  pasture  proceeds  upon  the 
same  ground.  What  is  meant  in  the  memorial  by  saying,  "  that 
this  third  non-resident  body  has  undermined  the  two  others,  and 
while  it  has  taken  from  the  immediate  government  its  responsible 


30 

powers,  and  its  most  valuable  privileges,  has  almost  rendered  nu- 
gatory the  functions  of  the  overseers?"  Did  not  this  sentence 
claim  the  corporate  powers  for  the  immediate  government,  and 
consider  them  as  their  most  valuable  privileges  ?  Is  the  language 
of  the  memorial  admitted  to  be  so  loose,  that  no  sense  whatever 
is  to  be  ascribed  to  these  words?  What  are  we  to  understand 
by  the  declaration,  "  that  this  privilege  [that  is,  of  constituting 
the  Corporation]  was  in  1806,  after  170 years  possession,  entirely 
wrested  from  them  by  the  non-resident  Corporation  ?'1  Let  alone 
the  facts,  which  were  by  their  own  confession  directly  opposed 
to  this  bold  and  unqualified  statement  ;  how  could  a  privi- 
lege be  wrested  from  a  body  of  men,  which,  it  is  admitted,  they 
never  claimed  or  enjoyed?  If  I  comprehend  the  present  ground, 
(and  I  feel  great  diffidence  in  making  a*ny  conjectures,  as 
to  what  is  the  ground  assumed,)  the  Corporation  and  overseers 
are  competent  to  fill  the  existing  vacancy  by  electing  any  man  in 
the  State-  That  they  may  do  this  lawfully,  but  the  Fellow  so 
elected  must  go  to  Cambridge,  and  reside  in  or  near  the  Col- 
lege. What  then  is  this  privilege  which  was  wrested  from  the 
immediate  government  ?  It  has  been  on  their  own  principles 
equally  wrested  from  every  other  citizen,  who  has  not  been  elect- 
ed. But  all  these  quotations,  conclusive  as  they  are,  cannot  be 
compared  with  the  concluding  sentences  of  the  memorial  to  the 
Corporation,  the  very  place,  in  which  the  gist,  and  scope  of  a 
petition  is  expected  to  be  found,  and  where  it  ought  to  be  de- 
fined ;  and  there,  it  is  put  most  expressly  on  the  ground  of  right. 

I  repeat,  therefore,  that  the  overseers  must  be  deeply  embar- 
rassed, in  considering  the  question,  without  a  declaration  of  the 
immediate  government  as  to  which  position  they  mean  to  as- 
sume, and  I  think  they  are  bound  to  express  their  sentiments 
distinctly  on  this  point. 

It  could  not,  of  course,  be  expected,  that  I  should  so  far  forget 
what  is  due  to  decorum,  as  to  reply  to  the  numerous  sneers 
upon  my  remarks ;  such,  for  one  example,  as  imputing  to  me 
the  declaration,  that  the  masters  and  fellows  of  the  colleges 


31 

in  Great  Britain  were  the  visiters  of  colleges.  I  said  no  such 
thing  ;  and  the  most  cursory  reader  will  perceive,  that  1  alluded 
to  the  charity  schools,  whose  abuses  have  been  proved  to  be  so 
enormous,  and  of  some  of  which  the  masters  and  fellows  of  the 
Engiish  Colleges  are  the  visiters.  I  knew,  at  least  as  well  as  the 
author  of  the  Reply,  that  the  friends  of  the  two  universities 
had  successfully  resisted  the  proposed  inquiry  into  their  abuses. 

I  would  say  a  few  words,  in  reply  to  the  invidious  re- 
marks upon  the  Corporation. 

It  is  alleged,  page  20th,  that  "  every  one  of  the  Fellows  of  the 
Corporation  is  now  actually  a  member  of  the  board  of  overseers? 
where  they  may  approve,  and  have  by  their  casting  votes  ap- 
proved, their  own  votes  as  members  of  the  corporation.''''  This 
assertion,  from  a  Professor  of  the  College,  will,  of  course,  re- 
ceive full  credence  on  the  part  of  those  ignorant  of  the  facts ; 
but  Judge  Davis,  one  of  the  Fellows,  never  was  a  mem- 
ber of  the  board  of  overseers.  Mr.  Prescott  resigned  his 
seat  at  that  board  as  soon  as  he  was  elected,  and  Mr.  Otis  has 
not  appeared,  I  believe,  at  the  board  of  overseers  since  his  elec- 
tion and  of  course  never  has  by  his  casting  vote  approved  his  own 
vote  as  member  of  the  Corporation.  There  remain  two  others, 
Dr.  Porter  and  Dr.  Channing,  who,  by  the  constitution  of  the 
state,  are,  ex  officio,  members,  and  it  is  their  duty  to  remain 
there.  A  very  determined  enemy  of  the  College  some  years 
since  made  it  a  charge  against  these  two  gentlemen,  that  they 
voted  in  the  board  of  overseers  in  support  of  their  own  acts. 
This  charge  proceeded  upon  a  vulgar  error.  It  confounded 
the  distinction  between  judicial  appeals  and  the  acts  of  concur- 
rent legislators.  In  the  former,  the  aggrieved  party  appeals  to 
another  tribunal  on  the  ground,  that  the  inferior  one  has  done 
him  injustice.  It  would  be  indelicate  and  unjust  in  the  officer, 
whose  decision  is  impeached,  to  sit  in  the  appellate  tribunal  and 
to  sustain  his  own  questioned  opinions.  But  we  can  see  no 
reason,  why  a  member  of  the  corporation  of  the  College,  who 
has  voted  for  a  Professor,   because   he   esteemed  him  to  be 


32 


the  fittest  man,  should  not  give  the  same  opinion  in  the 
other  board ;  since  there  might  be  no  pretence,  that  the  deci- 
sion below  was  complained  of.  This  objection  has  always  seem- 
ed to  my  mind  to  be  addressed  to  the  prejudices,  rather  than 
the  good  sense  of  the  public,  and  it  was  a  subject  of  grief  to  see 
it  repeated  from  a  source  so  high. 

Nor  can  I  feel  better  satisfied  with  the  declaration,  that  the 
intimation  that  the  officers  were  only  "  servants  of  the  Corpo- 
ration," was  only  a  jest — certainly  a  jest  very  ill  placed — and  the 
renewed  suggestion, "  that  the  Corporation  still  use  this  expres- 
sion, when  speaking  of  the  venerable  and  learned  members  of  the 
immediate  government"  seems  to  prove,  that  it  was  considered  as 
not  a  sportive  expression.  We  know  that  the  belief  that  such 
language  has  ever  been  used  in  the  Corporation,  is  without  the 
slightest  foundation :  at  the  same  time,  we  cannot  but  feel  pain, 
at  the  existence  of  a  jealousy  so  unfounded.  Nor  are  we  bet- 
ter satisfied  with  the  reproaches  cast  upon  the  former  members 
of  the  Corporation,  men,  who  have  been  venerated  for  more 
than  a  century.  We  think  the  effect  of  these  reflections, 
upon  the  character  of  those,  who  have  till  now  been  esteemed 
worthy  of  the  highest  respect,  is  pernicious  to  the  cause  of 
truth.  It  must  seem  strange  to  men  accustomed  to  forensic  reason- 
ing to  see  the  author  of  the  reply,  after  explicitly  renouncing  all 
claims  of  right,  still  recur  to  his  disavowed  opinions,  and  speak  as 
he  does  in  his  defence  of  the  memorial,  of  the  past  elections  of 
the  Corporation,  (page  48,)  as  follows :  "  It  is  to  take  from  the 
residents  'dvery  valuable  property  ;  a  very  important  vested  right." 
And  again — "  I  do  apprehend  that  merely  on  loose  notions  of  ex- 
pediency, addressed  in  popular  appeals  to  the  community,  the 
very  importance  and  value  of  a  right  will  not  be  made  the  grounds 
of  taking  it  away."  So  soon  had  the  author  forgotten  his  disa- 
vowal of  the  claim  of  right. 

I  am  unable  to  perceive  how  that  can  be  a  very  valuable  pro- 
perty, and  a  very  important  vested  right  in  the  immediate  govern- 
ment, which  every  citizen  of  the  State  had  a  right  to  share  with 
them. 


/ 


:va 


NOTE  (D.) 

Upon  perusing  the  text,  I  find  I  have  omitted  some  remarks, 
which  seem  to  me  to  be  important.  Those  who  shall  examine 
with  care,  the  very  imposing  list  of  Documents  comprized  in 
pages  from  61  to  70,  of  the  defence  of  the  Memorial,  will  per- 
ceive, that  every  one  of  them,  (except  the  truly  unlucky  quota- 
tion from  Randolph,  page  70,  which  1  shall  presently  consider,) 
bears  date  from  1652  to  1654,  or  at  least  all  before  1657.  It  is 
a  well  established  fact,  that  from  1650,  the  date  of  the  charter, 
till  1657,  there  were  no  corporate  fellows  in  action.  The  cor- 
porate fellows  did  not  accept  the  charter,  till  the  Legislature 
amended  it  by  the  Appendix,  as  it  is  called,  in  1657.  This  is 
proved  by  the  fact,  that  when  President  Dunster  resigned  in 
1654,  he  resigned  to  the  General  Court)  and  not  to  the  Corpo- 
ration, who  had  the  power  of  election,  and  to  whom  all  future 
resignations  have  been  made.  He  held  at  that  time,  all  the  Cor- 
porate funds,  and  the  General  Court  authorized  a  committee  to 
receive  them  of  him.  Of  course  there  was  then  no  treasurer. 
The  records  of  the  Corporation  furnish  no  proof  of  their  acting 
under  the  Charter  till  1657.  All  the  documents — every  one  of 
them  cited  by  the  defender  of  the  Memorial,  must  therefore 
refer,  as  in  fact,  from  their  general  terms,  they  do  refer,  to  the 
College  fellows — the  teaching  fellows,  and  the  President ;  and 
not  to  the  Corporate  fellows,  who  had  not  then  accepted  the  trust. 
In  other  words,  they  have  no  sort  of  connection  with  the  pre- 
sent question,  whether  the  Corporate  fellows  did  reside,  and  -were 
maintained. 

Again. — The  first  public  document,  dated  in  1652,  cited  by  the 
defender  of  the  Memorialists,  is  a  curious  one,  and  it  is  strange, 
that  it  should  have  been  cited  in  favour  of  the  memorial.  It 
was  an  order  of  the  General  Court,  in  which,  after  reciting,  that 
young  men  after  their  graduation,  were  apt  to  seek  employment  in 
foreign  parts,  (we  trust  this  did  not  refer  to  the  Corporate  fel- 
lows named  in  the  charter)  it  proceeds  to  provide  for  a  volun- 
tary collection  from  the  inhabitants  of  Massachusetts,  to  be 


34 

applied  to  the  "  maintenance  of  the  President,  certain  fellotos, 
and  poor  scholars  in  Harvard  College."  Now  it  is  certain,  that 
this  could  not  mean  the  Corporation,  or  if  it  did,  it  proves,  that 
a  certain  number  of  them  were  to  be  maintained,  and  certain 
others  were  not  so  to  be  maintained.  But  the  truth  is,  and  is 
apparent  from  the  clause,  that  it  referred  (as  many  private  grants 
did)  to  the  poorer  sort  of  resident  fellows.  No  person  can  believe, 
that  two  years  after  the  charter,  the  Corporate  fellows,  being 
fixed  by  the  charter  at  five,  and  having  a  legal  title,  were  so 
loosely  and  absurdly  defined. 

We  will  now  advert  to  the  letter  of  Randolph  to  the  Privy 
Council,  pages  70  and  71.  This  letter  was  dated  22  years  after 
the  charter.  And  Randolph  declares,  that  there  were  at  that 
time  but  "four  fellows"  in  Harvard  College,  and  that  the  two 
senior  fellows  received  30  pounds  each,  and  the  two  junior  fel- 
lows received  15  pounds  each.  Is  this  cited  to  prove  that  the 
Corporate  fellows  were  all  maintained  ?  Were  there  not  then 
Jive  corporate  fellows  ?  Was  there  either  in  the  charter  or  at  any 
moment  since,  any  distinction  of  ranks  among  them  ?  Who  ever 
heard  of  senior  and  junior  fellows  among  the  fellows  of  the 
Corporation  ?  The  charter  made  them  equal,  and  by  what  power, 
or  by  what  process,  or  by  law,  were  they  ever  divided  into 
different  grades  ?  It  is  not  a  little  remarkable  that  the  testimony 
of  Randolph  is  discredited  by  the  defender  of  the  memorial  him- 
self, on  the  very  next  page,  but  certainly  /  am  not  disposed  to 
discredit  him,  because  his  account  is  precisely  conformable  to 
my  understanding  of  the  College  history.  No  man  in  that  age 
confounded  the  Corporate  fellows  with  the  30  pound,  and  the  15 
pound  salary  officers,  and  teachers  of  the  College. 


NOTE  (E.) 

I  think  the  following  propositions  are  sufficiently  maintained 
by  the  researches  of  the  defender  of  the  memorial,  and  by  well 
authenticated  documents. 


/ 


35 


First — That  the  charter  itself  laid  no  restriction  whatever  on 
the  right  of  election  of  Corporate  Fellows,  except  that  of  being 
"  Inhabitants  of  the  Bay." 

Secondly — That  there  have  been  non-resident  Fellows  from 
1672  to  1824,  and,  probably,  from  the  date  of  the  charter. 

Thirdly — That  the  only  attempt  to  give  another  construction 
to  the  charter,  was,  after  full  hearing,  rejected  by  one  branch  of 
the  legislature,  102  years  since,  and  has  never  been  renewed. 

Fourthly — That  all  the  clauses  in  legislative  acts  and  grants, 
which  speak  of  the  maintenance  of  the  Fellows,  are  clearly  ref- 
erable either  to  Fellows  resident  for  the  purposes  of  education, 
or  to  that  portion  of  the  Corporate  Fellows,  "  who  resided,  and 
did  the  work  of  the  College." 

Fifthly — That  all  the  private  grants  recited,  were  designedfor 
the  support  of  "  College  Fellows,"  and  not  of  the  Corporate 
Fellows,  a  distinction  which  takes  its  date  from  the  charter  it- 
self. 

Sixthly — That  there  has  been  felt  by  the  two  College  boards 
a  reluctance  to  commit  the  whole  concerns  of  the  College  to 
the  instructors. 

Seventhly — That  the  government  of  the  State,  under  the  Co- 
lonial and  Provincial  charters,  as  well  as  under  the  new  constitu- 
tion of  the  republic,  have  uniform lv  approved  and  confirmed  this 
sound  and  natural  construction  of  the  terms  of  the  charter. 

Lastly — That  if  the  charter  does  not  restrain  the  two  College 
boards  in  their  freedom  of  election,  it  would  be  highly  inexpe- 
dient now  to  shackle  them.  It  would  deprive  them  of  the  power 
to  select  from  the  whole  community,  those,  whom  they  might 
deem  most  competent  to  fill  these  responsible  and  important  of- 
fices. 

It  is  highly  probable,  that  if  the  defender  of  the  memorial 
shall  continue  his  researches  with  candour,  he  will  come 
to  the  same  conclusion,  at  which  those  who  have  exam- 
ined the  question  have  long  since  arrived.  Indeed,  there  are 
strong  indications,  not   only  that  his   colleagues  have  serious 


36 


doubts,  but  that  the  defender  himself  feels  a  much  diminished 
confidence  in  his  opinions.  Men  of  talents  are  not  apt  to  spread 
their  arguments  over  so  wide  a  surface,  (and  upOn  points  which 
have  so  little  relevancy,)  when  they  feel  a  perfect  conviction  of 
their  force,  and  when  their  acknowledged  powers  would  enable 
them  to  bring  them  into  a  condensed  and  irresistible  form  and  com- 
pass. 


3  0112  105552209 


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